The Senate Broke the Nominations Process, Not the Size of Government

I appreciate Mr. Lott’s response to our disagreement about the causes of the broken confirmation process. To be clear, I don’t necessarily dispute that public officials place greater significance on judicial appointments than in the past and that that may account for the well-documented increase in obstruction and delay.  But that’s focusing on a question that has no (practical) solution. It’s seeking to explain why senators make the judicial confirmation process so difficult.  I don’t believe there’s just one answer.  It may be that some senators are most guided by the concerns Mr. Lott raises about the size and scope of the federal government. It may be that others are more concerned about the social issues that he and I both noted – and that have nothing to do with the size of the federal government. And it may be that electoral politics plays an important motivating factor.

Given that these factors are so multifaceted and amorphous, it makes more sense to focus on how senators have managed to break the confirmation process.  The answer, I suggest and John McGinnis seems to agree, is the abuse of Senate rules and norms. Yes, those procedures and customs have existed for quite some time, but their abuse is a more recent phenomenon (and not limited to Republicans, to be sure).  Fix those rules so that those with an incentive to obstruct confirmations no longer have the tools to do so, and the judicial confirmation process becomes much smoother.   

Mr. Lott’s suggestion – shrink the size of the federal government to address the broken judicial confirmation process – is an ideologically driven solution to a non-ideological problem. Case in point: Mr. Lott says that the obstruction and delay during President Obama’s first term was driven by the administration’s failure to nominate judges in a timely fashion.  There’s certainly some truth to the fact that this White House did not nominate judges as quickly as past presidents.  (Of course, there’s a chicken-and-egg question here that Mr. Lott ignores: why nominate someone who we know is going to get blocked?  Moreover, part of the delay is due to the fact that President Obama took the Senate’s “advise” role more seriously than his predecessors and many senators exploited that opportunity to delay the nomination process.) Still, the numbers support Mr. Lott’s claim that President Obama made judicial nominations at a slower pace that past presidents. But, then, that begs the question:  if that’s the problem, how is that at all linked to the size of federal government? The answer: it’s not.  

Additional examples abound of the disconnect between the problem and Mr. Lott’s proposed solution.  The most significant and contentious periods of debate about the proper size of the federal government and the role of the judiciary in limiting governmental power (late 1800s and during the New Deal era) were not accompanied by a broken judicial confirmation process like what we see now.  

Finally, it’s important to note the tacit – or maybe it’s even explicit – acknowledgement in Mr. Lott’s piece.  Those who have lost the debate about the size of the federal government are retreating to the judiciary, in hopes that activist conservative judges will undo what the democratic branches have done.  At the very least, it would be valuable for those fighting for a smaller government to heed Clint Bolick’s admonition to stop calling for a less activist judiciary.

Also from this issue

Lead Essay

  • John R. Lott, Jr. lays out the evidence that the judicial confirmation process is broken. Nominations are taking longer on average. They’re growing nastier. And Lott’s research shows that the most objectively qualified nominees are the ones who have it worst. The reason why is easily understood: Other things being equal, no one, whether a Republican or Democrat, wants to see the smartest, most persuasive of one’s ideological opponents on the bench. Lott’s remedy is a familiar one to libertarians: Reduce the size and scope of judicial activity in all of our lives. Lower the stakes, and the conflict will ease. This, though, can only be done by reducing the scope of the federal government itself.

Response Essays

  • Michael Teter agrees that the judicial confirmations process is broken, along with much else about the legislative process. The whole thing, he argues, is a problem. But to him, the root of the problem isn’t big government: Teter argues that the rules and norms of the Senate delay action in a wide variety of areas, and not the growth of government. He describes the recent end of nomination filibusters as a good step toward fixing the problem, and he recommends further changes that will speed up the appointment of judges.

  • Clint Bolick agrees that the growth of government has made the judiciary more influential. But he recommends that libertarians take advantage of the opportunity it presents: Advocates of economic and personal liberty have lately enjoyed some measure of success in the courts, thanks in part to organizations like the Federalist Society, which has done much to promote qualified judicial candidates. We owe it to ourselves to capitalize on the importance of the modern judiciary.

  • John O. McGinnis argues that the real problem with our courts lies in their lower echelons: The Supreme Court consists of manifestly qualified and able judges, all of whom attended our top two law schools, among their other impressive qualifications. But at the lower end, the public isn’t paying attention, and nominees who are otherwise qualified can be sunk for political reasons. McGinnis applauds the elimination of the filibuster for nominations, but he suggests that a cultural change may also be in order: the return to originalism in judging and legal scholarship. Although an originalist judge may have some latitude for interpretation, that latitude is greatly reduced when compared to a living constitutionalist judge. This, McGinnis suggests, will reduce politicking on the courts.